Question

I often hear lawyers say that the Rules of Professional Conduct only apply to lawyers when they are representing clients. Is that always the case?

Answer

The Rules of Professional Conduct apply to lawyers 24 hours per day, seven days per week. It is often suggested that the only rule that applies to a lawyer in situations not involving the representation of a client is the rule relating to misconduct (SCR 20:8.4). This rule provides that a lawyer may not engage in various types of conduct that would be considered misconduct, such as fraud or misrepresentation, and subject the lawyer to an investigation and possible discipline. One of the most common areas of misconduct is related to a lawyer being convicted of a crime and whether that conviction warrants some type of disciplinary action against the lawyer.

A recent Missouri Supreme Court decision strongly suggests that the professional conduct rules that typically relate to the representation of clients also apply in situations in which the lawyer is the client and is represented by another lawyer. In the Missouri case, a lawyer brought several claims against former clients seeking payment of fees that the lawyer claimed he should receive for work that he performed while an associate at another law firm. The court held that these claims were baseless because the lawyer was not entitled to direct payment; instead, the law firm owned the claims for payment.

The Illinois Supreme Court had previously taken disciplinary action against the lawyer, suspending the lawyer’s license for six months for violating the Illinois Professional Conduct Rules concerning the bringing of frivolous claims (SCR 20:3.1) and conduct prejudicial to the administration of justice (SCR 20:8.4(d)). The Missouri Supreme Court issued reciprocal discipline for the same violations (In Re Hess, No. SC92923, Aug. 27, 2013).

The important aspect of this decision was the finding by a split supreme court that the lawyer could be disciplined for bringing frivolous claims in a capacity other than as a lawyer representing a client, that is, in his plaintiff capacity. The majority of the Missouri Supreme Court held that the language in its rule equivalent to SCR 20:3.1 did not differentiate between the conduct of a lawyer when representing a client and the conduct of a lawyer as a plaintiff in a legal action.

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A literal reading of the rule is that the lawyer may not bring a frivolous claim, but that does not mean that the rule’s applicability is limited to a lawyer who is acting in his or her representative capacity and bringing a frivolous claim on behalf of a client. The court reviewed the lawyer’s personal conduct as the plaintiff and found it to be in violation of the state’s Rules of Professional Conduct.

In conclusion, some courts will apply professional conduct rules (and their prohibitions) very liberally to the conduct of lawyers whether they are engaged in representation or in personal conduct unrelated to a particular representation. The privilege of being a lawyer, it is argued, makes a lawyer subject to these rules both in the lawyer’s representation capacity and in the lawyer’s personal capacity. Wisconsin lawyers must understand that their conduct is always subject to potential scrutiny by the Wisconsin Supreme Court through the Office of Lawyer Regulation.